Terms and conditions of service
These terms and conditions of services (the "Terms") apply to Momentumm’s services as presented to the Customer in one or more service proposal(s) ("Proposal"),
and accepted by the Customer, which together constitute the entire agreement between the Parties.
1. Description of services and deliverables
Subject to the terms and conditions of the Terms, Momentumm agrees to provide the Customer with the Services set forth in the Proposal and to deliver the Deliverables specified therein, as the case may be.
In the event of a conflict between these Terms and the related Proposal, the terms and conditions of such Proposal shall prevail.
Any changes or additions to any Proposal must have the prior written approval of the Parties to be valid, including any additions or changes to the applicable Services, Deliverables, fees, schedules and/or terms and conditions of payment.
2. Terms and conditions of payment
Les honoraires de Momentumm afférents aux Services et Livrables sont établis dans la Proposition, auxquels toutes taxes applicables seront appliquées en sus, le cas échéant.Momentumm's fees are set forth in the Proposal, plus any applicable taxes, if any.
|NATURE OF THE SERVICES||TERMS AND CONDITIONS OF PAYMENT|
One-time services and projects
|First payment of 50% due and payable upon execution of the Proposal and constituting a non-refundable retainer.
Second payment of 50% due and payable after delivery of all Deliverables and final approval by the Customer.
|Pre-authorized automatic monthly payment by credit card, or any other payment method accepted by Momentumm.|
The Customer agrees to pay all Momentumm’s invoices within thirty (30) days of their issuance date (NET 30).
Momentumm reserves the right to increase the rates applicable to its recurring services at any time. In such case, the Customer may terminate the recurring services affected by the increase within thirty (30) days following the sending of a written notice to this effect by Momentumm; if the Customer fails to do so, the Customer will be deemed to have accepted the new rates which will apply to the billing cycle following said thirty (30) day period.
3. Obligations and responsibilities of Momentumm
Subject to compliance with the provisions of the Terms, Momentumm agrees to provide the labor and equipment necessary to perform the Services and to deliver the Deliverables to the Customer within the time frames of any Proposal, as the case may be.
Momentumm is free to choose the means of performing the Services. Therefore, Momentumm has full discretion to engage subcontractors to perform all or part of its obligations without further consent from the Customer.
Momentumm will use its best efforts to ensure that the Deliverables be conform to the specifications of the related Proposal and agrees to perform the Services in a professional manner, in accordance with generally accepted industry and commercial standards for similar services.
4. Obligations and responsibilities of the Client
The Parties acknowledge that the full cooperation of the Customer and its communication to Momentumm of all information required by the latter are essential to the performance of Momentumm's obligations in accordance with the timelines of any Proposal, as the case may be. Accordingly, the Customer agrees to:
- Provide to Momentumm, in reasonable form and time, all information and documents that Momentumm deems necessary for the performance of the Services; and
- Instruct and ensure that its representatives and employees provide Momentumm with their full and complete cooperation in accordance with the foregoing.
Momentumm will not be responsible for any delay in delivery or increase in its fees caused by the Customer's failure to meet its obligations above.
The Customer expressly agrees to comply with its obligations with respect to the payment of Momentumm's fees set forth in any Proposal. Momentumm reserves the right to suspend the provision of Services if the Customer defaults on payment and fails to remedy such default within five (5) days of receipt of written notice to that effect.
If the Customer cancels a video shooting appointment less than seven (7) days before the date of the said appointment, a penalty of a maximum of 20% of Momentumm's fees related to the video shooting may be applied, to cover the rental fees and subcontractors' fees incurred.
The Customer represents and warrants that all information, confidential or otherwise, and documents provided to Momentumm in connection with the performance of the Services, are accurate and free of any rights. Furthermore, the Customer represents and warrants that it is the exclusive owner of its Intellectual Property Rights, that they do not violate any law, and that they do not infringe upon the Intellectual Property Rights of any third party. In the event that the Customer fails to comply with this provision, the Customer shall indemnify Momentumm for any damages suffered by Momentumm and/or third-party claims that may arise therefrom.
5. Intellectual property
Subject to full payment by the Customer and to what follows, Momentumm assigns and transfers to the Customer all Intellectual Property Rights in the Deliverables and agrees to execute all documents that may be necessary to that effect. For clarity, Momentumm waives its moral rights in all original designs, plans, sketches, models and structures forming part of the Deliverables, and which are regarded as artistic works for the purposes of the Copyright Act, R.S.C. (1985) c. C-42.
Exception: Notwithstanding the generality of the foregoing, Momentumm retains all Intellectual Property Rights in the source files of video Deliverables. However, the Customer may request the assignment and transfer of these rights in consideration of an amount representing a maximum of 25% of Momentumm's fees for such video Deliverables. If applicable, the Customer acknowledges that Momentumm will keep the said source files for a period of six (6) months after delivery of the video Deliverables unless otherwise specified by the Customer.
Notwithstanding any provision to the contrary and notwithstanding any assignment of Intellectual Property Rights in favor of the Customer, Momentumm retains the following residual rights, without having to pay any compensation whatsoever to the Customer:
- Right to retain, use and reuse Background Technology used in connection with the provision of the Services and delivery of Deliverables; and
- Right to retain, use and reuse knowledge, techniques, processes, know-how, expertise, skills, ideas, talents and other Background Technology acquired prior to or during the provision of the Services and delivery of the Deliverables.
Notwithstanding any assignment of Intellectual Property Rights in its favor, the Customer grants Momentumm a perpetual, royalty-free license to use the Deliverables for portfolio purposes and for publication on its websites and social media pages.
Momentumm acknowledges that any documentation provided by the Customer is and remains the exclusive property of the Customer, and that it does not acquire any ownership rights whatsoever in any Confidential Information or Intellectual Property Rights of the Customer.
Momentumm acknowledges that it may have access, while performing the Services, to Confidential Information that is privileged and commercially sensitive to the Customer.
Accordingly, Momentumm agrees to:
- Use, disclose and reproduce any Confidential Information made available to it only for the purpose of providing the Services.
- Not to disclose or communicate to anyone any Confidential Information for any reason whatsoever without the written authorization of Customer, unless compelled to do so by law or by a court order.
- Take all precautions and security measures reasonably necessary to maintain the confidentiality of the Customer's Confidential Information against and without limitation theft, vandalism, and damage and immediately notify the Customer of any unauthorized use or disclosure of Confidential Information.
Momentumm undertakes the foregoing on behalf of itself and its employees, agents and subcontractors, if any.
Further, the Parties agree to keep the existence, and the terms and conditions of these Terms and of any Proposal strictly confidential.
The obligations set forth in this Section 7 shall survive the termination of the Parties’ contractual relationship .
7. Limitation of warranty and liability
The Services and Deliverables are provided “as is” without any express or implied warranty of any kind with respect to:
- The uninterrupted or error-free functioning of the Deliverables.
- The adequacy of the Services and Deliverables with the expectations and needs of the Customer.
- Expected returns and performance, including reports, opinions, estimates and forecasts made by Momentumm.
- The Customer's equipment, its functioning and its hardware and software components.
- The financial or non-financial, actual or apprehended, positive or negative, benefits resulting or that may result from the Services or Deliverables.
Except in the case of intentional or gross negligence on its part, Momentumm shall not be liable to the Customer for any fault or damage, direct or indirect, that may arise therefrom, and the Customer shall hold Momentumm harmless from any claim, including any warranty claim.
EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT SHALL MOMENTUMM (INCLUDING ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUBCONTRACTORS) BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY FORESEEABLE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, GOODWILL, DATA OR OTHER ECONOMIC LOSS (WHETHER ARISING IN CONTRACT, TORT OR NEGLIGENCE) EVEN IF MOMENTUMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO ONE OR MORE OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY. THE PARTIES MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM JURISDICTION TO JURISDICTION.
N NO EVENT SHALL MOMENTUMM'S TOTAL LIABILITY TO THE CUSTOMER EXCEED THE VALUE OF THE SERVICES RENDERED BY MOMENTUMM TO THE CUSTOMER AND ACTUALLY PAID BY THE CUSTOMER. EACH PARTY EXPRESSLY RELEASES THE OTHER PARTY FROM ANY LIABILITY BEYOND THIS LIMIT.
8. Duration and termination
|Nature of the services||Duration and terms of termination|
|One-time services and projects||
|Recurring services (subscriptions, etc.)||
Upon the date of termination, Customer shall pay all fees and expenses owed to Momentumm for Services rendered and Deliverables delivered by Momentumm up to the date of termination.
On the date of termination, Momentumm agrees to deliver to the Customer the elements of the Deliverables designed and developed up to the date of termination, including any documentation relating thereto if applicable.
Within five (5) days of the date of termination for any reason, Momentumm agrees to return or destroy any Confidential Information provided by the Customer in any form as directed in writing by the Customer.
9. General provisions
Governing Law and Forum. These Terms shall be governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. The Parties irrevocably and unconditionally agree that any claim or action of any kind arising out of the application or interpretation of these Terms shall be brought exclusively before Quebec ordinary courts in the judicial district of Montreal, to the exclusion of any other court of competent jurisdiction.
Entire Agreement. These Terms and any Proposal represent the entire and complete agreement between the Parties. No statement, representation, promise or condition not contained therein can or shall be deemed to contradict, modify or affect in any way the terms and conditions thereof.
Amendment. These Terms and any Proposal may be amended only by a writing signed by all Parties.
The following terms have the meanings given below, unless the context indicates otherwise:
"Background Technology" means all documents, data, models, know-how, methodologies, software and other materials of any kind and on any medium whatsoever, developed and/or used by Momentumm, prior to or during the term hereof, in the performance of the Services and/or delivery of the Deliverables.
"Confidential Information" means information (including files, materials and documents) relating to the business activities of either Party, present or contemplated, whether communicated in writing, orally, visually, demonstratively, technically or by any other means electronic or otherwise, whether or not such information is designated, marked, labeled or identified as confidential or proprietary to either Party, including but not limited to information that should be designated as confidential by its nature and/or is not publicly known, except for:
- Information that would otherwise be confidential but which the disclosing Party has itself made public or which is in the public domain,
- Information that was known to the receiving Party prior to the commencement of the Parties' business relationship or that is generally known in the industry prior to disclosure, or
- Information that has been lawfully received or transmitted to the receiving Party through no fault of the receiving Party or its representatives.
"Deliverables" means the work, reports and any documentation, if any, specified in any Proposal and provided to the Customer by Momentumm, including but not limited to ad hoc or one-time services.
"Intellectual Property Rights" means all intellectual property rights, titles and interests, including derivative rights, moral rights and rights including but not limited to patents, trademarks, trade names, codes, industrial designs, copyrights, original works, trade secrets, inventions, and any other intellectual property rights recognized in any jurisdiction, or any certificate or application for registration, assignment or recognition thereof.
"Party(ies)" means Momentumm and/or the Customer, depending on the context.
"Services" means the services that Momentumm agrees to provide to the Customer under any Proposal, including recurring or one-time services, and Deliverables.